ISSUANCE OF ENFORCEMENT GUIDANCE – PREGNANCY DISCRIMINATION ACT

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Pregnancy Discrimination and Related Issues. Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). By enacting the PDA, Congress sought to make clear that “[p]regnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.”

The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work. Generally speaking:

1) An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and

2) Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

In passing the PDA over three decades ago, Congress intended to prohibit discrimination based on “the whole range of matters concerning the childbearing process,” and gave women “the right . . . to be financially and legally protected before, during, and after [their] pregnancies.” Thus, the PDA covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant persons similar in their ability or inability to work.

Title VII, as amended by the PDA, prohibits discrimination based on the following:

Current Pregnancy – Such discrimination occurs when an employer refuses to hire, fires, or takes any other adverse action against a woman because she is pregnant, without regard to her ability to perform the duties of the job.

Past Pregnancy – An employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The language of the PDA does not restrict claims to those based on current pregnancy. As one court stated, “It would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.

A causal connection between a claimant’s past pregnancy and the challenged action more likely will be found if there is close timing between the two. For example, if an employee was discharged during her pregnancy-related medical leave (i.e., leave provided for pregnancy or recovery from pregnancy) or her parental leave (i.e., leave provided to bond with and/or care for a newborn or adopted child), and if the employer’s explanation for the discharge is not believable, a violation of Title VII may be found.

Potential or Intended Pregnancy – The Supreme Court has held that Title VII “prohibit[s] an employer from discriminating against a woman because of her capacity to become pregnant.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 206 (1991); see also Kocak v. Cmty. Health Partners of Ohio, 400 F.3d 466, 470 (6th Cir. 2005) (plaintiff “cannot be refused employment on the basis of her potential pregnancy”); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996) (“Potential pregnancy . . . is a medical condition that is sex-related because only women can become pregnant.”). Thus, women must not be discriminated against with regard to job opportunities or benefits because they might get pregnant.

It is important to note that the United States Supreme Court recently issued a 5-4 decision in the Hobby Lobby case finding that certain for-profit companies, based on religious beliefs, cannot be required to pay for specific types of contraceptives for their employees. This decision potentially creates a circumstance in which the gender rights of women under Title VII come into conflict with the religious rights of employers under certain circumstances. In the Hobby Lobby case it was contended that the Affordable Care Act violates the First Amendment and other federal laws protecting religious freedom because it requires closely-held for-profit (family) companies to provide coverage for contraceptives like the “morning-after pill,” which the companies consider tantamount to abortion.

The PDA Enforcement Guidance, which was issued just one week after the Supreme Court’s decision in Hobby Lobby, specifically addresses the gender discrimination aspect of decisions impacting the employment of women who utilize birth control. The EEOC specifically states:

Depending on the specific circumstances, employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives. For example, an employer could not discharge a female employee from her job because she uses contraceptives.

With regard to abortion, the Guidelines go on to provide:

Title VII protects women from being fired for having an abortion or contemplating having an abortion. However, Title VII makes clear that an employer that offers health insurance is not required to pay for coverage of abortion except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion. The statute also makes clear that, although not required to do so, an employer is permitted to provide health insurance coverage for abortion. Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.

Medical Conditions Related to Pregnancy or Childbirth – Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions

One area of the PDA that typically comes into play involves the uniform application of an employer’s Leave Policies such as sick leave and child-rearing leave. Title VII requires that an employer provide the same benefits for pregnancy-related medical conditions as it provides for other medical conditions.